The Constitutional Case Against State-Controlled Fact-Checking: A Case Comment on Kunal Kamra v. Union of India

Authors

Abhinav Ravi
Aravind Sundar

Abstract

The Bombay High Court in Kunal Kamra v Union of India struck down the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which had established a centralised fact-checking unit to issue takedown orders against social media posts that were identified as “fake or false or misleading”. The Rules threatened the safe harbour protection of social media intermediaries for failing to adhere to such takedown orders. The Court held that the establishment of the fact-check unit violates the rights of free speech, profession and equality under the Indian Constitution. This article explores the free speech implications of a centralised fact-check unit. Based on a political justification of free speech that defends free speech values for its role in constituting democratic governance by enabling public discourse, this article argues that the concept of a centralised fact-check unit is violative of the free speech values enshrined in the Indian Constitution. It further argues that a centralised fact-check unit is per se an illegitimate state function due to the intrinsically value-laden and interpretive nature of the concepts of ‘truth’ and ‘falsity’.

Recommended Citation

Ravi, Abhinav and Sundar, Aravind (2024) "The Constitutional Case Against State-Controlled Fact-Checking: A Case Comment on Kunal Kamra v. Union of India," National Law School of India Review: Vol. 36: Iss. 2, Article 1.
DOI: doi.org/10.55496/YVEW3627
Available at: https://repository.nls.ac.in/nlsir/vol36/iss2/1

Digital Object Identifier (DOI)

doi.org/10.55496/YVEW3627